A v Google New Zealand Ltd - [2012] NZHC 2352

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF PLAINTIFF

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV: 2011-404-002780 [2012] NZHC 2352

BETWEEN A Plaintiff

ANDGOOGLE NEW ZEALAND LTD Defendant

Hearing: 5 March 2012

Counsel: M F McClelland for plaintiff
T J Walker/S L Jackson for defendant

Judgment: 12 September 2012

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 12 September 2012 at 5.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
P Ryder-Lewis, Bartlett Law, PO Box 1852, Wellington for plaintiff
T J Walker, Simpson Grierson, Private Bag 92518, Auckland for defendant

Counsel:
M F McClelland, PO Box 10-242, Wellington for plaintiff

A V GOOGLE NEW ZEALAND LTD HC AK CIV: 2011-404-002780 [12 September 2012]

[1] This proceeding raises, for the first time in New Zealand, the question of responsibility of a search engine service provider for the content of information on third party websites accessed from search results.

[2] The plaintiff is a medical practitioner who practices as a psychiatrist. Defamatory statements about him have been posted on a website in the United States hosted by a third party to which the public is directed when his name is searched on the internet, using what is known as a search engine accessed through the internet domain name The search results include reference to the defamatory material, and link to the third party website.

[3] The plaintiff says that the defendant has defamed him by publishing, in the search results, information purportedly about him taken from the offending websites and what is known as a hyperlink to the websites with the defamatory material. He seeks summary judgment against the defendant on the basis that the information is clearly defamatory and that the defendant is aware that the information and hyperlinks are being produced in the search results. The defendant appears to have removed reference to them in search results on occasion, but has failed to prevent the information and hyperlinks from being re-published.

[4] The defendant opposes the plaintiff’s application, and cross applies for summary judgment itself. It says that the plaintiff has the wrong defendant, in that its ultimate parent company, Google Inc (incorporated and resident in the United States of America), owns and operates the search engine. Secondly, it says that publication by a search engine provider of results of an inquiry (in which information is generated automatically from the billions of websites on the internet) does not amount to publication.

[5] I apologise to counsel for the delay in delivery of this judgment, which is due to a combination of volume of work and the wish to give the matter particularly careful consideration in light of the significant for both parties.

[6] A suppression order is in place in respect of the name of the plaintiff. I have avoided naming the offending websites to avoid the plaintiff being identified through them.

Background

[7] The defendant is an indirect subsidiary of Google Inc, a company…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 2352
Decision Date: 12 September 2012

CaseChat Overview and Summary

The case of A v Google New Zealand Ltd involved a medical practitioner, the plaintiff, who sought to hold Google New Zealand Ltd, the defendant, liable for defamatory statements about him that appeared in search results generated by the Google search engine. The plaintiff argued that the defendant was responsible for the defamatory content as it had the ability to control or influence the search results. The defendant opposed the plaintiff's application and sought summary judgment itself, arguing that it was not the correct defendant and that search engines are not publishers for defamation purposes. The court found that the defendant was not the correct party to be held liable, as the ultimate parent company, Google Inc, owned and operated the search engine. The court also found that search engines are not publishers for defamation purposes, as the results are generated by an automated system without any judgement as to the content. The court dismissed the plaintiff's application and awarded summary judgment to the defendant, and ordered the defendant to pay costs to the plaintiff on a scale 2B basis, as well as disbursements as fixed by the Registrar.

Orders